in the Interest of R.A.M. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00528-CV
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IN THE INTEREST OF R.A.M.
_______________________________________________________ ______________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-204,353-EF
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MEMORANDUM OPINION
This is an appeal from an order in a suit affecting the parent-child
relationship (SAPCR). In his appeal, Cody McAdams challenges procedural and
substantive matters related to a hearing the trial court conducted on McAdams’
motion asking the trial court to enforce its prior orders regarding possession and
child support against his ex-wife, Kerri McAdams. 1 The hearing occurred in
1
In her brief, the appellee is identified as Kerri Dawn Dunbar. The record
shows that in 2009, Kerri Dunbar, formerly Kerri McAdams, and Cody McAdams
divorced. The SAPCR was incorporated into the parties’ 2009 divorce decree;
later, the trial court modified some of the provisions in the original SAPCR. See
generally In re R.A.M., No. 09-12-00331-CV, 2013 WL 257367, at *1 (Tex.
App.—Beaumont Jan. 24, 2013, pet. denied) (mem. op.).
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September 2012; in October 2012, the trial court rendered a written order,
memorializing its rulings from the September hearing. In six issues, McAdams
complains the trial court (1) failed to find Dunbar violated the possession order; (2)
abused its discretion by hearing Dunbar’s motion to enforce, which she brought
under her former name and which McAdams argues contains a false statement; (3)
abused its discretion in admitting, over McAdams’ relevancy objection, a
screenshot from a website that was established and maintained by McAdams and
his wife; (4) erred in finding that both parties had failed to communicate with each
other concerning the child’s health, education, and welfare; (5) erred in signing a
proposed order that he contends was not served on him before the hearing, and (6)
erred in permitting Dunbar’s attorney to use disrespectful language and a
disrespectful tone when questioning or referring to McAdams during the hearing.
We conclude that we do not have jurisdiction to consider the matters that
McAdams complains about in issues one and four; we overrule McAdams’ other
issues, and we affirm the trial court’s order.
Contempt Ruling
In issues one and four, McAdams challenges the trial court’s failure to grant
his motion to enforce the possession order through contempt. The trial court
considered the motion along with Dunbar’s motion to enforce the support orders,
but the hearing does not reflect that the trial court decided to hold Dunbar in
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contempt. We have no jurisdiction to hear an appeal from a ruling by a trial court
to deny a motion asking that a party be held in contempt. Norman v. Norman, 692
S.W.2d 655, 655 (Tex. 1985); In re W.J.B., 294 S.W.3d 873, 877 (Tex. App.—
Beaumont 2009, no pet.).
Child Support Arrearage
In its order of October 2012, which is the order being appealed, the trial
court found McAdams in arrears on his obligation to reimburse Dunbar for health
insurance expenses during the months of July 2012 and August 2012. The trial
court determined that McAdams owed $398 for the reimbursement in dispute. In
its October 2012 order, the trial court ordered McAdams to pay Dunbar $25
monthly until McAdams had paid the $398 in full. A judgment confirming an
arrearage may be appealed. W.J.B., 294 S.W.3d at 878. To the extent that
McAdams’ issues concern the trial court’s determination that McAdams, as of the
date of the hearing, owed $398 toward his child support obligations, we reach the
complaints he makes in issues two, three, five, and six. Id.
In issue two, McAdams argues that the trial court should have declined to
consider Dunbar’s motion to enforce because it falsely alleged that he was
previously found in contempt of court and constitutes a fictitious pleading because
the motion identified her by her former name, Kerri McAdams. With respect to
McAdams’ complaint that Dunbar’s pleadings falsely alleged he had previously
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been held in contempt, Dunbar’s motion reflects that the statements she made in
her motion refer to allegations of non-payment in a motion she filed to enforce her
rights. We conclude that Dunbar’s motion asked that the trial court hold McAdams
in contempt based on her claims of non-payment. As Dunbar did not allege that
McAdams had been held in contempt, McAdams’ argument that it did are without
merit.
With respect to McAdams’ complaint that Dunbar’s motion for contempt
identified her as “Kerri McAdams,” he did not file a verified pleading challenging
Dunbar’s capacity to seek past support from him or challenging her capacity to sue
him for contempt. A challenge to a party’s capacity must be filed prior to trial, and
it must be based on a verified pleading. See Tex. R. Civ. P. 93; see also Sixth RMA
Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003). Because the arguments
that McAdams raises in issue two were not properly pled, these complaints are
overruled.
In issue three, McAdams contends the trial court erred in admitting evidence
during the hearing that he contends was not relevant to the issues before the trial
court. “Evidence which is not relevant is inadmissible.” See Tex. R. Evid. 402.
During the hearing, Dunbar offered an exhibit of a website while McAdams
was being cross-examined. The exhibit reflects that McAdams solicited donations
to fund an appeal of an earlier modification order controlling the possessory rights
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to R.A.M., and the exhibit includes a statement alleging that the McAdams family
believed that the judge had been bribed. When being questioned about the content
of the website, McAdams and his current wife claimed that the statement about the
judge was based on an incident where Dunbar’s mother told them that “‘[a]s long
as we keep paying, you won’t see your son again.’” 2 McAdams did not disagree
when he was asked whether the statement made by Dunbar’s mother could have
referred to Dunbar paying her attorney.
McAdams argues the exhibits had nothing to do with proving that Dunbar
should receive the relief she had requested in her motion to enforce. But, the
evidence had some relevance to McAdams’ credibility as a witness because
McAdams’ unfounded public accusation of judicial misconduct suggests that
McAdams was attempting to improperly influence the SAPCR proceedings. See
also Tex. R. Evid. 611(b). The trial court may, in its discretion, allow cross-
examination of a witness on a matter that relates to the witness’s possible bias or
motive. See In re Commitment of Winkle, No. 09-13-00347-CV, 2014 WL
2131468, at *10 (Tex. App.—Beaumont May 22, 2014, pet. filed). On appeal,
McAdams suggests the evidence was prejudicial. However, he did not object on
that basis during the hearing, so his argument that the evidence was unduly
prejudicial was not preserved for appeal. See Tex. R. Evid. 403; see also Tex. R.
2
Dunbar’s mother denied making a statement of this nature.
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Evid. 103(a)(1); Tex. R. App. P. 33.1. Because the exhibit and the testimony
regarding the website were relevant, it was not error to admit this evidence. Issue
three is overruled.
In issue five, McAdams complains that the trial court violated Texas Rule of
Civil Procedure 21a by signing an order in open court before the order was
presented to McAdams and erred by ordering that Dunbar file a notice of her name
change with the District Clerk as quickly as possible. The record reflects that the
trial court signed the order on appeal just before the hearing ended. During the
hearing, McAdams complained that Dunbar had not given the clerk written notice
of her name and address, as required by statute. See Tex. Civ. Prac. & Rem. Code
Ann. § 30.015 (West 2008). The trial court instructed Dunbar to file the notice with
the district clerk. Later that day, Dunbar filed a letter notifying the district clerk
that in a separate but related cause the trial court had granted her petition to change
her surname from McAdams to Dunbar, and she attached a certified copy of the
order granting her request to change her name from “Kerri McAdams” to “Kerri
Dawn Dunbar.” The record also reflects that the relevant parties obligated to
comply with the trial court’s orders were present during the hearing that is the
subject of this appeal. McAdams has not shown how Dunbar’s failure to notify the
District Clerk with respect to her current name and address caused any harm. Tex.
R. App. P. 44.1.
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The record also does not support McAdams’ claim that he had not seen a
copy of the order before the trial court signed it. When the October hearing began,
McAdams acknowledged that he had received a copy of the proposed order near
the beginning of the hearing, and reflects that he had a copy of the order before the
judge signed it. We overrule issue five because the record demonstrates
compliance with the applicable rule regarding service of the proposed order in this
case. See Tex. R. Civ. P. 21a.
In issue six, McAdams complains that the trial court allowed Dunbar’s
lawyer to use disrespectful language and a disrespectful tone when she questioned
or referred to him during the hearing. McAdams identifies ten different places in
the reporter’s record where McAdams alleges opposing counsel made comments
that were critical and disrespectful. The record also shows that McAdams failed to
object to any of these statements when they were made. Because McAdams did not
object, the complaints he makes in issue six were not preserved for our review on
appeal. See Tex. R. App. P. 33.1(a). We overrule issue six.
Frivolous Appeal
Dunbar contends the appeal is frivolous and requests that we impose a
damage award of $10,000. See Tex. R. App. P. 45. McAdams argues Dunbar’s
brief contains factual misrepresentations; he asks that we strike all or part of
Dunbar’s brief. See Tex. R. App. P. 38.9(a).
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Whether to grant a Rule 45 motion is a matter of discretion that should be
exercised “with prudence and caution and only after careful deliberation in truly
egregious circumstances.” Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652,
657 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Although we uphold the trial
court’s ruling that the website-page exhibit was relevant, McAdams preserved
error for appeal on the issue of its relevancy, as he cited appropriate authority in
his brief and presented an argument that the evidence should have been excluded.
Because McAdams’ brief includes an issue that represents an informed, good-faith
challenge to a ruling by the trial court, we decline to hold that McAdams’ appeal is
frivolous. See Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d
666, 676 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The respective requests
of the parties asking that we remedy the other’s alleged misconduct are denied. We
affirm the trial court’s order of October 29, 2012.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on March 4, 2014
Opinion Delivered September 4, 2014
Before Kreger, Horton, and Johnson, JJ.
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